Since 1977, Jon Michael Probstein has assisted people and businesses in all matters, is currently special counsel to firms in LA and NYC, and operates his own office in Nassau County. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

Monday, February 29, 2016

"Here, the evidence established that the mother and the father changed
residences frequently over a period of 18 months, and they were evicted
from one residence and were homeless for several months, living in a
tent or their vehicle. The child changed schools five times in four
school districts over that same time period and, with each change in
school, the child missed at least several days and sometimes several
weeks of school. Indeed, we note that "[u]nrebutted evidence of
excessive school absences [is] sufficient to establish . . . educational
neglect" (Matter of Gabriella G. [Jeannine G.], 104 AD3d 1136, 1137
[internal quotation marks omitted]). The evidence also supports the
court's conclusion that the child had poor hygiene"

But note the two judge dissent:

".....we conclude that the court erred in awarding custody of the child to
petitioner because petitioner failed to demonstrate the existence of
extraordinary circumstances (see generally Matter of Bennett v Jeffreys,
40 NY2d 543, 544). "A finding of extraordinary circumstances is rare,
and the circumstances must be such that they drastically affect the
welfare of the child' " (Matter of Jenny L.S. v Nicole M., 39 AD3d 1215,
1215, lv denied 9 NY3d 801, quoting Bennett, 40 NY2d at 549; see Matter
of Aylward v Bailey, 91 AD3d 1135, 1136). Absent a threshold showing of
extraordinary circumstances, "the question of best interests does not
arise and the natural parent[s] must be awarded custody" (Matter of Male
Infant L., 61 NY2d 420, 429; see Matter of Jody H. v Lynn M., 43 AD3d
1318, 1318).

Here, we conclude that the evidence at the hearing concerning
respondents' alleged deficiencies as parents fell short of establishing
unfitness, persisting neglect, or similar misconduct constituting
extraordinary circumstances (see Aylward, 91 AD3d at 1136-1137; Matter
of Culver v Culver, 190 AD2d 960, 961-962; see also Jenny L.S., 39 AD3d
at 1216; cf. Matter of Braun v Decicco, 117 AD3d 1453, 1454, lv
dismissed in part and denied in part 24 NY3d 927). The fact that
respondents moved between various temporary residences with the child
for some time after being evicted from their apartment is not, by
itself, sufficient to establish unfitness (see Matter of Mildred PP. v
Samantha QQ., 110 AD3d 1160, 1161-1162; Matter of Darrow v Darrow, 106
AD3d 1388, 1392; see generally Male Infant L., 61 NY2d at 430), and the
record does not establish that their living situation was ever unsafe
(cf. Matter of Van Dyke v Cole, 121 AD3d 1584, 1585-1586; Darrow, 106
AD3d at 1392), or that the child's medical care was being neglected (see
Matter of Jerry Q. v Malissa R., 287 AD2d 810, 811).

In our view, the child's school absences and hygiene do not rise to
the level of extraordinary circumstances, and petitioner's testimony
that the child would be better off living with him also does not
establish extraordinary circumstances (see Bennett, 40 NY2d at 548; Jody
H., 43 AD3d at 1319). In view of petitioner's failure to demonstrate
the existence of extraordinary circumstances, the court erred in
awarding him custody of the child (see generally Male Infant L., 61 NY2d
at 429; Jody H., 43 AD3d at 1318)."

Wednesday, February 24, 2016

Today's NEWSDAY has an article "Long Island foreclosure rate dips, still higher than nation" and from that article:

"Now, with lower fuel costs and near-record-low interest rates —
including rates as low as 2 percent for homeowners who received certain
loan modifications — homeowners are more likely to struggle due to a
serious illness or loss of a second job, Yopp said.

For one family seeking help at Long Island Housing
Partnership, “they can’t get any assistance and there were heart issues,
a kidney transplant. . . . The bank can’t do anything, [the homeowners]
just don’t have the income” to afford their medical costs and housing
payments, Yopp said. “It can be devastating.”

It took lenders an average of 1,010 days to foreclose on
homes in New York State during the last three months of 2015, the
sixth-longest delay in the country, according to California-based data
company RealtyTrac."

Tuesday, February 23, 2016

In Matter of Mercado v Smith
2015 NY Slip Op 08419
Decided on November 18, 2015
Appellate Division, Second Department, the specific facts are not noted but the court states:

""In a . . . custody [proceeding] between a parent and a nonparent, the
parent has a superior right to custody that cannot be denied unless the
nonparent establishes that the parent has relinquished that right due
to surrender, abandonment, persistent neglect, unfitness, or other
extraordinary circumstances" (Matter of Diana B. v Lorry B., 111 AD3d
927, 927; see Matter of Flores v Flores, 91 AD3d 869, 869-870). This
rule applies even when, as in this case, a prior order granting custody
of a child to a nonparent was issued on consent of the parties (see
Matter of LaBorde v Pennington, 60 AD3d 950, 951-952; Matter of Cockrell
v Burke, 50 AD3d 895, 856). The party seeking to deprive the natural
parent of custody bears the burden of establishing the existence of
extraordinary circumstances (see Matter of Cambridge v Cambridge, 13
AD3d 443, 443-444). Even when the nonparent satisfies that burden, the
natural parent may not be deprived of custody unless the court then
determines that placing custody with the nonparent is in the best
interests of the child (see Matter of Bennett v Jeffreys, 40 NY2d 543,
548-549; Matter of Culberson v Fisher, 130 AD3d 827, 827; Matter of
Wright v Wright, 81 AD3d 740, 741).

Here, the Family Court properly determined that the respondent
sustained her burden of demonstrating the existence of extraordinary
circumstances (see Matter of Culberson v Fisher, 130 AD3d at 828; Matter
of Flores v Flores, 91 AD3d at 870). Additionally, the Family Court's
determination that the best interests of the child would be served by an
award of custody to the respondent is supported by a sound and
substantial basis in the record and, therefore, we decline to disturb it
(see Matter of Culberson v Fisher, 130 AD3d at 828-829; Matter of Diana
B. v Lorry B., 111 AD3d at 928)."

Friday, February 19, 2016

But what of the "babysitter", the "snow shoveler", etc.? For an interesting twist on a child injured while mowing a lawn, see Vincent v. Riggi & Sons, 30 NY 2d 406 - NY: Court of Appeals 1972 and note the following:

""Employed" is elsewhere defined to include those "permitted or suffered
to work" (Labor Law, § 2, subd. 7). The language has been construed to
include independent contractors. Thus, in Koenig v. Patrick Constr. Corp.
this court interpreted a similar phrase "employing or directing another
to perform labor of any kind" as covering both employees and
independent contractors (298 N.Y. 313, 316-317). Indeed, in Bernal v. Baptist Fresh Air Home Soc. (275 App. Div. 88, 95, affd. 300 N.Y. 486),
concerned both with section 130 and section 2 (subd. 7), the phrase
"permitted or suffered to work" was interpreted as including children
employed by a subcontractor when the principal had knowledge of the
employment (see, also, Clark v. Arkansas Democrat Co., 242 Ark. 133, 135,410*410 interpreting the phrase "employed or permitted to work" of a child labor statute as covering an independent contractor)."

Make sure your form of entity is properly set up and continues to remain in existence, or the principals will be personally liable

Pay your annual filing fees so your entity remains in existence, or the principals could then become personally liable.

2. Pay attention to details.

If you set up a corporation as your business entity, make sure that you sign the documents with your title as an officer (i.e. as “President”, “Vice-President” etc.). Do not sign a business document personally.

Keep records, on site and off site, of business events such as issuance of stock, bonds, notes and capital contributions. Ex. If a friend or family loans money to your entity, do you have an executed promissory note which states the interest rate, who is the borrower, the repayment terms, etc.?

Have you set up an accounting system/program such as Quickbooks and do you know how to use it?

Do you have a budget for your venture?

Do you know your “burn rate?"

Have you prepared and reviewed an Income Statement and Balance Sheet?

3. Guaranties

There are two types of guaranties that small businesses will usually enter into: (a) a general guaranty and (b) a “good guy” guaranty

A guaranty is a written agreement by a third party or entity to pay the debts of an individual or entity (primary obligor) who fails to pay its debts as they mature

As an example, if the entity wants an American Express corporate credit card, the principal(s) will need to guaranty payment to American Express if the entity does not make that payment.

“Good Guy” guaranties are generally used for office leases. It is a limited form of guaranty that provides that the principals agree to pay the debts for the Tenant, if the Tenant fails to pay base rent or additional rent, until (i) the Tenant pays its rent arrears, (ii) vacates the space in broom clean condition and (iii) gives the keys back to the Landlord.

4. Responsible Person Taxes are sales taxes or employees’ share of employment taxes (FICA and FUTA) that are collected by an entity and not paid over to the tax authorities.

The responsible person is generally an officer of the corporation and the taxing authorities will conduct an audit to determine who the responsible person(s) are after the business closes or fails.

Responsible Person Taxes are also not dischargeable in personal bankruptcy

Note the principals of a defunct entity are not liable for general corporate income tax liabilities that were not paid by the defunct entity.

5. Fraudulent Conveyances

NYS Debtor and Creditor Law and the Bankruptcy Code provide that if an individual or a business does not have sufficient capital to conduct its business, then they cannot transfer property for no consideration (gift) to family, friends or third parties. If they do, a creditor or the Bankruptcy Trustee can commence litigation to unwind the transaction.

Hint: The best time to do “asset protection planning” is before one gets into trouble!

6. Small Corporation and LLC Wagesfor Employees

Section 630 of the New York Business Corporation Law renders every privately held corporation’s ten largest shareholders personally liable, jointly and severally, “for all debts, wages or salaries due and owing to any of [the corporation’s] . . . laborers, servants or employees other than contractors, for services performed by them for such corporation.” N.Y. Bus. Corp. Law § 630(a)

Limited Liability Company Law § 609(c) provides similar treatment to laborers, servants and employees of a LLC

Accordingly, if you are running a small business that is failing, make sure that you pay monies due your employees before the business closes or you may be personally liable for those monies.

7. Closing a business (letting it go inactive or in windup mode) v. a Chapter 7 bankruptcy filing

Closing a business benefits: Lower administrative costs and possible to do without the help of professionals.

Closing a business detriments: Belief by vendors or creditors that assets or inventory were not properly sold or accounted for, lawsuits, no accounting by a bankruptcy trustee and no “automatic stay” which results from an entity filing for bankruptcy protection

Chapter 7 bankruptcy filing benefits: Protection from creditor actions via the automatic stay, orderly payment of creditors if assets are available for distribution, and an orderly liquidation of company assets. The business closes after the Chapter 7 bankruptcy petition is filed with the bankruptcy court

Wednesday, February 10, 2016

"To modify an existing custody or visitation order, there must be a
showing that there has been a change in circumstances such that
modification is required to protect the best interests of the child (see
Matter of Preciado v Ireland, 125 AD3d 662; Matter of Holmes v Holmes,
116 AD3d 955). The best interests of the child must be determined by a
review of the totality of the circumstances (see Eschbach v Eschbach, 56
NY2d 167, 171-172). "Since weighing the factors relevant to any custody
[or visitation] determination requires an evaluation of the credibility
and sincerity of the parties involved, the hearing court's findings are
accorded deference, and will not be disturbed unless they lack a sound
and substantial basis in the record" (Matter of Jackson v Coleman, 94
AD3d 762, 763; see Matter of Preciado v Ireland, 125 AD3d 662).

Here, the mother had been awarded custody of the subject child in the
parties' 2007 judgment of divorce. In 2011, the father filed a petition
to modify that custody provision to award him sole custody. At a
hearing, the parties testified that, since 2009, the child had been
staying at the father's apartment three nights per week and every other
weekend so that he could attend school several blocks away. The father
established a change in circumstances since the time of the parties'
judgment of divorce such that modification of the custody provision was
in the best interests of the child. Accordingly, the Family Court
providently exercised its discretion in awarding sole custody to the
father (see Matter of Diaz v Diaz, 224 AD2d 614, 615; Matter of
Moorehead v Moorehead, 197 AD2d 517, 519)."

Here it would appear that by simple math, the father had primary residential custody: 3 nights a week times 52 weeks is 156 nights. Add 2 nights a week for 26 weeks is 52. Thus, each year, the child is with father for 208 nights or 58% of the year.

Tuesday, February 9, 2016

"We agree with the husband, however, that the court erred in providing in
the judgment that "primary physical residence of [the subject child] is
awarded to the mother, with visitation to the father." Pursuant to a
prior stipulation, the parties agreed to shared custody with
approximately an even distribution of parenting time, and the court
accepted that stipulation by ordering that the stipulation be
incorporated in, but not merged into, the judgment of divorce. That
stipulation, as the court noted in its decision, "reveals a truly 50-50
shared parenting plan." "[T]hus, neither [parent] is the primary
physical custodian" (Matter of Disidoro v Disidoro, 81 AD3d 1228, 1229,lv denied 17 NY3d 705; see generally Eberhardt-Davis v Davis, 71 AD3d 1487, 1487-1488).
Consequently, the court erred in awarding primary physical residence to
the mother. We therefore modify the judgment accordingly."

Friday, February 5, 2016

Yes it can happen. I attended a terrific CLE yesterday at the Suffolk County Bar Association. The fact is that the interests of a bankruptcy court, the trustee appointed, the creditors of the debtor, etc. may conflict with the interests of one or both parties in a matrimonial action.

For those in a matrimonial cases, whether resolved by settlement or action, some financial aspects of the divorce may be disrupted or, at least further litigated, when one of the spouses file for bankruptcy - and different rules apply for Chapter 7 liquidations and Chapter 13 reorganizations.

As I have said before, if marriage is supposed to be for life...divorce can be eternal.

Thursday, February 4, 2016

A small minority of lawyers openly acknowledge prior or existing substance or
mental health conditions, problem drinking and mental health concerns. But according to a recent and
comprehensive landmark study of U.S. lawyers, called “The Prevalence
of Substance Use and Other Mental Health Concerns among American
Attorneys,”many lawyers are
not seeking the help they need.

Wednesday, February 3, 2016

"It is well established that equitable distribution of marital property does not necessarily mean equal distribution. Duffy v. Duffy, 84 AD3d 1151 [2d Dept 2011]; Michaelessi v. Michaelessi, 59 AD3d 688 [2d Dept 2009]. The equitable distribution must be based on the circumstances of the particular case and the consideration of a number of statutory factors. DRL § 236[B][5][d]. The court has substantial discretion in fashioning an award of equitable distribution. Stated another way, "the trial court has substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances," Mahoney-Buntzman v. Buntzman, 12 NY3d 415, 420 [2009].

Here, plaintiff has met her burden of proving, by a preponderance of the evidence, that the defendant committed wasteful dissipation of marital assets with regard to his financial support of a second family, and this constituted financial misconduct as related to marital assets. There can be no dispute that income received by a spouse during the marriage is marital property. DRL, § 236[B][1][c]. In fact, defendant concedes that marital funds were used to support his second family. Plaintiff introduced into evidence examples of defendant's diversions of marital income, from the parties' joint checking account, for A.S's rent, cable television bill, and other expenses. Although not easily quantified, the court believes that defendant's conduct in dissipating marital funds for so many years during this long-term marriage justifies a finding that there should be a disproportionate distribution of the equity in the marital residence. Kerley v. Kerley, 131 AD3d 1124 [2d Dept 2015]. Clearly, the record supports that defendant's conduct meets the test of Factors 12 and 14 of DRL §236 [B][5]b], respectively: i.e. the wasteful dissipation of marital property [Factor12]; and any other factor which the court shall expressly find to be just and proper, i.e., the so called "wild card" factor [Factor 14]. In this regard, the court finds Factors 12 and 14 are significant factors applicable to the disposition of the marital residence.

The court finds that it is fair and reasonable that plaintiff be awarded sole and exclusive title and possession to the marital residence located in XXX, with her entitlement to one hundred (100%) of the equity. Henery v. Henery, 105 AD3d 903 [2d Dept 2013]. This is justified by the wasteful dissipation of marital assets by defendant, and the unilateral placing of his own interests above those of his rightful dependants.

To implement this distribution, defendant's counsel shall include a provision in the Judgment of Divorce providing for the transfer of title to the marital premises from plaintiff and defendant, to plaintiff alone. This shall be accomplished by defendant executing a bargain and sale deed with covenant against grantor's acts, and the ancillary documents required to be filed together with the recording of the deed. Defendant's attorney shall prepare the transfer documents required to effectuate the conveyance of the marital residence, and defendant shall incur any and all expenses relative to the conveyance and the recording of the deed. In the event defendant fails to sign the deed within 30 days of the Judgment of Divorce being served upon him with notice of entry, the court directs the Westchester County Clerk to sign the deed in his stead upon presentation by plaintiff without further application to the court."

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/